How can I support her? Domestic violence, immigration and women with no recourse to public funds

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2 Glossar y Directory Campaigning Financial support Immigration Immigration Financial support Campaigning Directory Glossary

3 Financial support Campaigning Directory Immigration Immigration Financial support Glossar y Southall Black Sisters Women s Resource Centre How can I support her? Domestic violence, immigration and women with no recourse to public funds A resource pack for voluntary and community organisations Campaigning Directory Glossary

4 Directory Campaigning Financial support Immigration Acknowledgements Our thanks to Asian Women Unite, Glasgow Violence Against Women Partnership, Imkaan, Joint Council for the Welfare of Immigrants, NIA Project, Praxis and Women s Aid, for their information and advice. We are grateful for detailed legal advice from Pat Saini and Kelly Whiter at O'Keeffe Solicitors; Jo Hickman at Fisher Meredith; and Desmond Rutledge from 2 Garden Court. Thanks are also due to the following for funding: Association of London Government, Big Lottery Fund, City Parochial Foundation, Comic Relief, Lloyds TSB Foundation and Network for Social Change; and in particular to Matrix Chambers (Causes Fund) for funding the printing and design of the resource pack. Disclaimer At the time of printing, all care was taken to ensure the information contained in this pack was accurate and correct. However websites, organisations, strategies, policies, laws, contact details etc do change or become outdated. Please always check information to ensure it is correct and up-to-date at time of use. Women s Resource Centre and Southall Black Sisters cannot take responsibility for changes to references or information in this guide. Contacts Southall Black Sisters 21 Avenue Road Southall Middlesex UB1 3BL Tel: southallblacksisters@btconnect.com Women s Resource Centre Dallington Street London EC1V 0BB Tel: info@wrc.org.uk Immigration Financial support Campaigning Directory 2Glossary Copyright Southall Black Sisters & Women s Resource Centre, Cover and inside design by Iris Wilkes. For a copy of this resource pack in large print, audio, Braille or other formats please contact Women s Resource Centre at info@wrc.org.uk or Glossary

5 Contents Campaigning Financial support Immigration Immigration and asylum Domestic violence rule Practical steps for a successful application under the domestic violence rule Asylum applications Human Rights applications European Economic Area cases Flowchart: immigration and asylum applications at a glance Copy of Immigration Directorate Instructions on domestic violence Financial support for women with no recourse to public funds The problem What financial assistance is available? Eligibility at a glance Entitlement to healthcare How to get support from local authorities Copy of letter from government to local authorities Immigration Financial support Campaigning Directory Campaigning How to campaign on individual cases How to campaign on the wider issues Directory Directory 59 Glossary Glossary Glossar y 3

6 4Glossary Directory Campaigning Financial support Immigration About this guide This guide is aimed at voluntary and community organisations and others who work or come into contact with women who are subject to domestic violence and the probationary period, (i.e the Two Year Rule ) in immigration law. 1 It has been produced jointly by Southall Black Sisters (SBS) and the Women s Resource Centre (WRC). In June 2004, WRC and SBS held a joint information and training event for voluntary and community sector workers who support women subjected to domestic violence and who are also experiencing immigration problems. As a result of this event, there was an overwhelming demand for further support. This guide provides information and advice on how women with uncerain immgration status who are fleeing domestic violence can be supported. This guide outlines both the law and practical steps that should be taken to support and secure the right of women to stay in the UK indefinitely under the Domestic Violence Rule. We hope that this guide will help caseworkers and advisors provide practical support and assistance to women who are eligible to apply for stay in the UK on the basis of domestic violence. The guide also covers, briefly, other applications that can be made for women who fall outside the Domestic Violence Rule as well as more detailed guidance on how to help women with no recourse to public funds. to the issues Over the last two decades, the UK government has introduced a range of measures and legislation aimed at reducing the incidence of domestic violence, and related homicides, and creating a culture of zero tolerance for such violence. These initiatives do not, however, extend to women with immigration problems, rendering the government s approach to such women as inhumane and discriminatory. An estimated 600 women every year who have insecure status are subject to domestic violence from their spouse. 2 However, the combination of immigration and welfare rights legislation ensures that they cannot access safe accommodation or welfare benefits which are necessary to leave a violent relationship. The result is that they are faced with a stark choice: leave and face destitution or stay and risk their lives. Following extensive campaigning and lobbying by SBS (who demanded changes to the immigration and welfare benefits rules for women facing domestic violence) the government introduced the Domestic Violence Concession (incorporated into the immigration rules in 2002). The purpose of the Concession is to make it easier for women to leave a violent relationship without fearing deportation back to their countries of origin where they risk violence and persecution for being divorced or separated. Initially under the Concession, the evidential requirement was too restrictive and few, if any, women could meet it. Further intensive lobbying by SBS and other women s organisations followed which, in 2002, resulted in an extension of the types of evidence required to prove domestic violence. Under the current Domestic Violence Rule (which applies both to spouses and partners in a 1 For those who work in Scotland, the law and policies on domestic violence and child protection may be different. Please refer to the excellent leaflet on Domestic Abuse and Two Year Abuse produced by the Glasgow Violence Against Women Partnership. See the Directory for contact details. 2 These figures are taken from SBS surveys between 1999 and The figures include spouses and unmarried partners of men with British citizenship or Indefinite Leave to Remain leave to remain, overstayers, failed asylum seekers, students, premit holders, etc.

7 same sex relationship), if a person (usually a woman) can prove that she is a victim of domestic violence by providing the requisite evidence, then she is entitled to remain in the UK indefinitely. Whilst the introduction of the Domestic Violence Rule was a very important step forward, it still fails many women. What does no recourse to public funds mean? People with 'no recourse to public funds' are those who, due to their immigration status are allowed to be in this country but are not eligible for many of the public funds that other UK residents can claim, such as benefits and council housing. Upon entry to the UK as a partner or a spouse of a British national, there is often a condition attached to leave prohibiting 'recourse to public funds'. Public funds in immigration rules describes those welfare benefits which applicants need to show that they will not claim and that they can be adequately maintained without them. This is due to the continuing restrictive nature of the Rule, both in terms of the evidence needed and in relation to the category of people who can avail themselves of the Rule. However, the most significant reason why women are not able to make use of the Rule is the existence of the no recourse to public funds requirement. The Domestic Violence Rule has removed, to some extent, women s fears of being returned to their countries of origin if their marriage/ relationship breaks down, but it has not removed their fear of destitution and further violence. The impact of the no recourse to public funds requirement is discussed in more detail below. The recent overhaul of domestic violence laws, and in particular the enactment of the Domestic Violence, Crime and Victims Act 2004, was a missed opportunity to protect women who do not have settled status. The government claimed it was sympathetic to the plight of women with immigration difficulties, yet refused to use the Act to amend immigration and benefit rules to provide women with a safety net of support so that they can report and leave an abusive relationship. In response to pressure from SBS and Women s Aid, in February 2004 the government provided a contribution of 40,000 to the Women s Aid Last Resort Fund. Women s refuges were able to apply to the Fund to enable them to house and financially support women subject to the no recourse requirement. However, the funding was only available for a maximum of eight weeks and by September 2004, as predicted, the funds ran out. In November 2004, the government contributed a further 80,000 to the Fund but this too ran out since it only represented a fraction of the amount needed to support the 600 or so victims of domestic violence who are excluded from benefits each year. In October 2004, at an SBS conference on violence against Black and minority ethnic (BME) women, the Home Office Minister, Baroness Scotland, announced that the government would bring in new measures to provide support for women. These included yet another extension to the type of evidence required under the Domestic Violence Rule. During the passage of the Domestic Violence, Crime and Victim Act and since, the government has made it clear that it has no intention of allowing all victims of domestic violence to receive benefit support. Women s and other voluntary and community organisations have have expressed that this inconsistency is due largely to the ongoing public hysteria Immigration Financial support Campaigning Directory Glossary 5

8 6Glossary Directory Campaigning Financial support Immigration surrounding immigration and asylum matters. Campaign to Abolish No Recourse to Public Funds An ongoing campaign led by SBS, involving WRC and key domestic violence groups, is calling for the abolition of the no recourse requirement for those who experience violence in the context of marriage, employment and trafficking. The campaign is also calling for the Domestic Violence Rule to be extended to all women subject to immigration control. Voluntary and community organisations are being encouraged to write to their local MPs and the Prime Minister urging them to support the demands of the campaign. It is crucial that adequate, humane support is given to all women who experience violence and who are subject to immigration controls. Information on how to support this campaign is available from SBS and WRC.

9 Immigration and asylum Contents to immigration and asylum protections Domestic violence rule Practical steps for a successful application under the domestic violence rule Asylum applications Human Rights applications European Economic Area cases Flowchart: immigration and asylum applications at a glance Copy of Immigration Directorate Instructions on domestic violence Immigration Financial support Campaigning Directory Glossary 7

10 to immigration and asylum protections 8Glossary Directory Campaigning Financial support Immigration This section contains a summary of the main applications that can be made by women with uncertain immigration status, if their relationship breaks down due to domestic violence. (See page 21 for a flow chart of the the main applications that can be made and the immigration and asylum procedure.). It is possible, depending on the facts of the case, to make more than one application simultaneously. If a woman is eligible for more than one kind of application she should be advised to make all applications immediately, as she may be penalised for not doing this. The applicant s legal adviser will make a full assessment of what is in the best interest of the applicant according to the circumstances of the case. Example: Ms A entered the UK on a two year spouse visa from Pakistan. Her husband is a UK national. The marriage breaks down due to domestic violence and her husband and inlaws in the UK accuse her of adultery and make threats that they will kill her. Consideration should be given to making a Domestic Violence Rule application, a human rights application and/or possibly an asylum application. It is imperative that legal advice is obtained in all cases. See the Directory at the end of this pack for details of the Community Legal Service ( and other organisations with lists of immigration solicitors. Remember an immigration adviser must be registered with the Office of Immigration Services Commissioner (OISC) or an Accredited Immigration Adviser unless exempted. The OISC website of the ( provides a list of registered or exempted immigration advisers. However, anyone is allowed to make referrals to properly qualified solicitors or advisors and support applicants through the process of regularising their status.

11 Domestic violence rule The Domestic Violence Rule allows persons subject to immigration control and domestic violence, Indefinite Leave to Remain in the UK and it applies to both spouses and same sex partners. However, much will depend on the nature and quality of the evidence that is available to demonstrate that they are victims of domestic violence. Who can apply? To be eligible applicants must: Have entered the UK on a valid spouse or partner visa; Be married to or be in a relationship with a person who is a UK national or who has Indefinite Leave to Remain (ILR) in the UK (also known as settled in the UK); Make the application before their visa has expired (most visas are for a duration of two years); Be able to show that their relationship/ marriage broke down due to domestic violence and produce evidence of domestic violence during the visa period. What evidence is required? 3 The evidence required falls under two categories. The first category stipulates the evidence that immigration officers will prefer to see. The second category stipulates evidence that will also suffice. Category 1 - One of the following will be preferable: A court injunction, non-molestation order or other protection order (other than an ex-parte or interim order); A criminal conviction against the abusive sponsor or; A police caution issued to the abusive sponsor. Category 2 - If the above cannot be provided, the applicant must provide at least two of the following: A medical report from a hospital doctor confirming that the applicant has injuries consistent with being a victim of domestic violence; A letter from a GP who has examined the applicant and is satisfied that the applicant has injuries consistent with being a victim of domestic violence; An undertaking given to a court that the perpetrator of the violence will not approach the applicant who is a victim of domestic violence; A police report confirming contact or attendance at the home of the applicant as a result of domestic violence; A letter from social services confirming involvement in connection with reports of domestic violence; A letter of support or report from a Home Office recognised women s refuge or domestic violence support organisation. 4 3 The evidence required by the Home Office is set out in the Immigration Directorate Instructions, Chapter 8, Section 4, paras See page 22 of this pack. 4 Contact the National Domestic Violence Helpline on for refuges and domestic violence support services. See also the Immigration Directorate Instructions on domestic violence website: Annex AB for a list of Home Office recognised refuges and support organisation approved to provide evidence under the Domestic Violence Rule. If your organisation is not on the list of Home Office recognised domestic violence organisations, you should contact the Home Office to sign a declaration in order to get on the list. Immigration Financial support Campaigning Directory Glossary 9

12 Glossar y Directory Campaigning Financial support Immigration 10 What is the application process? The legal advisor will need to submit representations to the Home Office setting out the facts of the case and why the Domestic Violence Rule applies to the applicant. The main objective here is to explain that the domestic violence caused a permanent breakdown in the marriage and that at the time of the violence, the marriage was subsisting. The application is made on the appropriate SET (O) form accompanied by full representation with all available evidence enclosed. Those applicants who are without financial means can apply for the fee to be waived, which is a matter for Home Office discretion. Once the application has been received, the Home Office has stated that it will treat the matter as a priority. How long does the application process take? The Home Office has stated that they are now fast-tracking applications. A decision can be made within a few weeks or it can take several months. In some cases, despite full representations, the Home Office has been known to take a year or more! Positive outcome If the application is successful, applicants and any minor dependants (children) will obtain Indefinite Leave to Remain. Children born in the UK to a British citizen or parent settled in the UK, are automatically British and therefore entitled to remain in the UK. This means that once a confirmation letter has been received, the woman (and her children) will be eligible for social housing and full welfare benefits. Applicants will be also be able to travel on an existing passport to their country of origin if they so wish. Negative outcome If the application is refused, there is a right of appeal. Appellants (people appealing) should normally have their appeal heard within six months after lodging the notice of appeal. What is an overstayer, and can an overstayer apply? An overstayer for the purposes of the Domestic Violence Rule is someone who has not applied for Indefinite Leave to Remain or made a Domestic Violence Rule application before their visa expired. If the visa expired recently (in the last few days or weeks) the Home Office will usually consider applications under the Domestic Violence Rule. However if the applicant s visa has expired by several months (usually six months or more), a legal advisor will have to consider what immigration or asylum options are available. Other categories of entrants The Domestic Violence Rule does not apply to persons with limited leave (other than those subject to a probationary period), those who enter the UK as a fiancé or to those who are the dependants of spouses who are seeking asylum in the UK. Comments on the Domestic Violence Rule Definition of domestic violence Case law suggests that the Home Office must accept that threats of violence can come within the definition of domestic violence. Domestic violence does not just include physical abuse but also psychological and even financial abuse. If problems as to what constitutes domestic violence are anticipated, the general definition of domestic violence adopted by the government and key agencies including the police should be quoted in representations. For example, in the government s National Report on Domestic Violence (March 2005), the following definition of domestic violence (also used by the Association of Chief Police Officers) is given:

13 Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. Violence from whom? The Domestic Violence Rule does not expressly state what relationship to the applicant the perpetrator must have. An applicant who has been subject to violence not from her spouse but from other family members may still qualify for settlement where the violence has been the reason for the breakdown of the marriage. For example, in some cases where the perpetrator instigates the violence but does not carry it out, remains indifferent and/or fails to offer protection. Reporting to a GP Some organisations have noted that the Home Office has rejected reports to a GP on the basis that the medical practitioner has merely reported what the applicant has stated about the domestic violence. It is vital therefore that the GP also states that the injuries (physical or psychological) that have been noted are consistent with being a victim of abuse. The importance of having as much evidence of domestic violence as possible cannot be underestimated. If possible ensure that the GP is registered with the General Medical Council (GMC). Post-separation violence Often a victim who separates from a violent perpetrator will continue to be subjected to further violence and harassment. Often the violence will escalate. Those who work with abused women know that post-separation violence is often part of a continuum of violence and abuse experienced within a marriage or relationship. However, where there is only evidence of post-separation violence, it may be difficult to show that domestic violence is the cause of the marital or relationship break up. In such circumstances, it may be necessary to seek an expert report to explain the dynamics of domestic violence and in particular the link between separation and domestic violence. Immigration advisors will usually know of relevant experts to instruct, but often on issues of BME women and domestic violence, members of SBS are often instructed subject to availability and resources. Reporting violence outside of the marriage/relationship For reasons to do with fear of further violence and trauma, many women will only report their experiences after they have left a marriage or relationship but their applications are rejected on the grounds that such reports should have been made whilst in a marriage or relationship. Such a response represents a distortion of the Domestic Violence Rule, which does not stipulate how and when women should report violence but only asks that evidence of violence be provided. It should not, therefore, matter when the report takes place, as long as it can be shown that the domestic violence occurred within the probationary period and was the cause of the break up of the marriage or relationship. It is vital that the applicant is encouraged to give a full history of abuse and violence to show that the violence or abuse occurred during the marriage. Spouses who have left a violent relationship, then reconciled or returned and then left again later In some cases, an applicant may have left a violent marriage/relationship and then returned or reconciled and then left again some time later. This may be challenging in respect of her immigration status, because to qualify under the Domestic Violence Rule it is necessary to show that it was the domestic violence that led to the breakdown of the marriage 5. Often the Home Office will argue that if she returned to an abusive relationship previously, it is not the abuse that has led to any subsequent Immigration Financial support Campaigning Directory Glossary 11

14 Immigration Financial support Campaigning Directory separation. Evidence will need to be provided to show that domestic violence was the cause of the break-up and that the abuse took place within the probationary period. This is why it is crucial to ensure that there is good reporting of domestic violence to a number of agencies. It may also be necessary to instruct an expert who can explain why women, especially Black and minority ethnic women, reconcile with abusive partners. Outside the Domestic Violence Rule Where an application falls outside the Domestic Violence Rule, it is still important to consider other avenues for stay if appropriate. For example, if the evidence on domestic violence is not sufficient or the applicant fears persecution if returned to her country of origin as a divorcee, there may be strong human rights, asylum or compassionate grounds. Domestic Violence Rule, it is important to consider whether to request a recommendation (this involves a Judge making a recommendation to the Home Office to use its discretion) or consider an appeal based on human rights grounds. If all avenues are exhausted, where appropriate, it is still worth making full representations to request the Home Office to reconsider on compassionate grounds. If there are sufficient grounds, it may also be necessary to consider a judicial review of the Home Office decision, particularly where there is no right of appeal. An individual campaign may also be necessary in order to gain public support. (See the section on Campaigning below.) Glossar y 12 Refusal of applications If an application under the Domestic Violence Rule is refused, and the applicant had leave to stay at the time of the application, an appeal can be brought. However, in order to generate the right of appeal, the Home Office will have to cancel the current leave to enter/remain. It is usually the case that the current leave will be curtailed. If an application has strong compassionate grounds but falls outside the 5 In one case the Court of Appeal confirmed that even in cases where a woman leaves and then returns to a relationship, as long as it can be shown that the applicant was a victim of domestic violence during the probationary period whilst the relationship was subsisting, the normal assumption would be that in those circumstances it was the violence which led to the breakdown of the marriage.

15 Practical steps for a successful application to remain in the UK under the domestic violence rule When an applicant approaches you for assistance, the following steps must be taken to ensure that she has the strongest case possible: Find a solicitor Refer her to a reputable immigration lawyer or organisation for legal advice. Remember that if she has no means, legal aid will be available. Note that an adviser must be OISC registered or an Accredited Immigration Adviser (see for guidance). Whatever your position, it is vital that you refer to a legal advisor or lawyer for guidance and assistance. At the same time, it is also important to refer the applicant to a reputable family solicitor so that she can also obtain advice on protection orders, divorce, maintenance and children matters. Make Domestic Violence Rule, Asylum and Human Rights applications at the same time Advise her of the possibility of making one or more applications under the Domestic Violence Rule, Human Rights Act or Asylum law. Find a safe place for her Always ensure that the applicant has a safe place of residence pending any legal action including criminal action. Few, if any, women will contemplate leaving a violent relationship if they have nowhere to go and no means to support themselves. This is a very difficult and frustrating task as the normal routes to safety are not available to such women. (See the section on Financial Support below for further guidance on this) Strongly encourage her to report the violence to many agencies Help the applicant to report domestic violence to as many agencies as possible, e.g. the police, social services, her solicitor, GP and other women s organisations. If the applicant has not reported the violence or sought advice from the police or a solicitor, advise and encourage her to do so immediately because obtaining the type of evidence under category 1 (outlined above) is vitally important to her chances of success in remaining in the UK indefinitely. In the experience of SBS, accurate and appropriate evidence of domestic violence will help in ensuring that the initial representations are robust and that a positive decision is made relatively quickly. This is crucial since the applicant will not usually have any means to support herself until she has Indefinite Leave to Remain in the UK. It is important that there is little or no delay in making a report since any delay could work against the applicant s immigration and other interests, for example in relation to entitlements under the civil family law. SBS have often come across refusals of stay under the Domestic Violence Rule by the Home Office on the grounds that the applicant did not report incidents of domestic violence whilst in the marriage, so reports made after the marriage ended are deemed not to be credible. However any delay is better than not reporting the violence at all, so all applicants should be encouraged to make a report as soon as it is practicable and safe to do so. Whilst the reasons for not reporting violence in the marriage maybe understandable, it is always advisable to tell the applicant or relatives or friends who may contact you on her behalf, to report the violence or abuse experienced to the police or a solicitor as soon as possible. You must ensure that any delay and the reasons for it are properly explained by the legal advisor in the representations to the Home Office. Give her practical help to report the violence The applicant must be practically assisted in making a report if she or those supporting her do not speak English or are unsure as to how the various legal and criminal justice systems Immigration Financial support Campaigning Directory Glossary 13

16 Glossar y Directory Campaigning Financial support Immigration 14 work. The applicant should be informed that making a report, whether or not she wishes to pursue criminal or civil action, will help protect her following the break up of the marriage and help establish her credibility in relation to any immigration application or criminal or family proceedings. It is likely that many of these women will be unaware of their rights and speak little or no English. It is therefore important they are not merely referred to the police, social services or a solicitor by themselves. They may not get the right advice and their reports may be ignored or minimised. For this reason, where practicable and necessary, the advisor should also act as the applicant s advocate to ensure that any report and action that may follow, is correct and properly taken. From SBS s experience, advocacy with proper interpretation is often needed in such cases. Over the years, SBS has found that providing an advocacy service, including accompanying women to the police, courts and solicitors, can increase the chances of getting positive results because, when necessary, advocates can intervene on behalf of victims to ensure that they get the services to which they are entitled. Report to other places, e.g. a new GP While the type of evidence in Category 1 (see page 9) is desirable, there is also recognition that applicants are not always able to obtain such evidence. Often they fear further reprisals, destitution or deportation; do not want to face their perpetrators in court; and are ashamed of disclosing the abuse in public. For this reason, it is necessary to encourage an applicant, at the very least, to report the abuse to a GP, social services, hospital (if the injuries warrant a hospital visit), a refuge or a domestic violence agency, so that the experience of violence can be recorded and help given without confidentiality being breached or the applicant being put at risk. If the applicant s GP is a family GP and she is reluctant to report for fear of breach of confidentiality (i.e because the GP is from the same community as her perpetrator), assist her in reporting the abuse to another GP. Take full notes of the woman s account of abuse It is essential that comprehensive notes of the applicant s account of the abuse are taken, irrespective of whether other action is pursued. This includes noting any injuries and the general demeanour when she presents to you. If the applicant appears depressed, it is important to refer her to a trained counsellor or therapist, even if the waiting list is long. Also, encourage the applicant to obtain proper photographs, or take photographs yourself, of any injuries (SBS caseworkers often keep a camera in the office for such a purpose). However, care must be taken to ensure that any photographs taken are accurately dated and that photographs of an injury are connected to the applicant so that it is obvious that the injury has been sustained by the applicant. All photographs and notes should be passed on to the applicant s immigration representative. Take evidence from her friends and relatives Try to ascertain the details of any relatives, friends or neighbours who may have witnessed the abuse or known about it and would be prepared to give evidence for the purposes of an immigration/asylum application. Reassure the applicant that any initial evidence (before appeal) given by such people will remain confidential and relevant only to the immigration/asylum application and will not come to the attention of the perpetrator(s). Witness statements will bolster any application of stay and may be crucial if other types of evidence are not available. Note however that on their own, they are unlikely to be sufficient. Do not expect the applicant to take statements from witnesses. Pass on any information

17 regarding witnesses to the legal representative who will decide whether witness statements or letters of support are needed. Make your own statement It is also necessary to provide a statement/report of your own contact with the victim to the immigration representative. This is why accurate files and notes must be kept. The applicant s immigration representative can then decide whether or not the statement will be useful. Keep in constant contact with the woman and her solicitor It is vital that constant contact is maintained with both the immigration representative and with the applicant. It will be necessary for you to liaise between the representative and the applicant to ensure that the applicant is fully informed of her case and knows what is being done on her behalf. Immigration Financial support If an application is refused, consider a fresh application based on new evidence Where an application has been refused, it is often crucial to explore the reasons for the failure so that a fresh application, if not already considered, can be made. A fresh application can be made on the basis of new evidence and this includes the emergence of a more comprehensive account of domestic violence and other issues that have not been presented or properly presented in previous applications for good reason. Unfortunately, one of the major reasons for the failure of an immigration or asylum application is bad legal advice and representation. In such cases, it is imperative to refer the applicant to a reputable immigration advice agency or solicitor for emergency advice and assistance. Campaigning Directory Glossary 15

18 Asylum applications Glossar y Directory Campaigning Financial support Immigration 16 Who can apply? Anyone who meets the definition of a refugee under the 1951 Geneva Convention. The Convention defines a refugee as any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of protection of that country. How does this apply to women fleeing domestic violence? Women from certain countries may face harm amounting to persecution in their country of origin due to their status as a separated or divorced woman or for any other reason. Questions or issues to consider include: Has the applicant received threats from her own family or in-laws in her country of origin? Has the applicant been accused of adultery? If so, is adultery a criminal offence in her country of origin? What is the track record of the courts and police in that country for protecting women against domestic violence? If the woman has children, what are the custody laws in that country? Is she likely to lose custody? Generally, what are the conditions for single, separated or divorced women in her country of origin? Can she relocate anywhere else? If not, why not? If she fears harm and persecution in her country of origin not only from family members but from the state (because the police and courts will fail to protect her and may actually also harm or punish her) she may have a claim for asylum for reasons to do with her gender (membership of a social group) or political opinion (i.e. divorced and separated women in Pakistan, women accused of transgressing dress and sexual codes in Iran etc). If the applicant is dependant on the asylum application of her husband or partner, ensure that she obtains separate legal advice as soon as possible so that she can consider whether she should apply for asylum in her own right. For more information on gender persecution, see the Immigration Appellate (IAA) Asylum Gender Guidelines November In March 2004, the Home Office added guidance on gender issues in the asylum claim to its asylum policy instructions for caseworkers ( The Refugee Women s Resource Project at Asylum Aid can also be contacted for more information. How long does the application process take? This varies. Decisions can be made within a couple of weeks after the interview, but some applicants may wait for months. Positive outcomes Humanitarian protection: In gender persecution cases, women are often offered humanitarian protection (formerly called Exceptional Leave to Remain ) for a period of five years if an applicant is successful under Article 3 (prohibition of torture or inhuman or degrading treatment or punishment). No extension is required after that. At the end of the five year period, the applicant can apply for Indefinite Leave to Remain (ILR). If the applicant is successful under Article 8, it is highly likely that she will be granted Discretionary Leave to Remain in the UK before she is eligible to apply for (ILR). A person granted humanitarian protection (HP) has the right to full welfare benefits, local authority accommodation, education and the right to

19 work. Until Indefinite Leave to Remain is granted the applicant does not have the right to be joined by dependants or obtain a recognised travel document. Grant of refugee status: If the application is successful, the applicant and any minor dependants will be recognised as refugees. However, refugee status no longer has an immediate grant of ILR. An applicant granted refugee status will be given leave to remain in the UK for 5 years after which she will have to apply for ILR. Once ILR has been granted and the applicant receives a letter confirming this, she will be eligible for full welfare benefits, housing, education and have the right to work. She will be able to obtain a travel document but will not be able to travel to the country from which she claimed asylum. If she does, she will lose her refugee status. Negative outcome There is a right of appeal. The appellant (woman appealing) should lodge her notice of appeal. Within two weeks of lodging the notice, a Case Management Review Hearing will be listed. A full hearing is listed within four weeks of the notice of appeal being lodged. If the appeal is refused, there is a rights of appeal to the Asylum and Immigration Tribunal for a review of the immigration judge s decision. Immigration Financial support Campaigning Directory Glossary 17

20 Human Rights applications Glossar y Directory Campaigning Financial support Immigration 18 Who can apply? Anyone who can show that the UK will breach its obligations under the Human Rights Act 1998 by removing a person from the UK. How does it apply to women fleeing domestic violence? The key rights that the UK may breach by returning a woman who fears persecution in her country of origin due to her status as a separated/divorced woman are: the right to life (Article 2) and the prohibition on torture or inhuman or degrading treatment or punishment (Article 3). Women may also be able to make an argument that their right to family life (Article 8) may be undermined if they are likely to be separated from their children by, for example, harsh custody laws. How is this different from asylum? Article 3 can provide protection even where there is no convention reason (i.e. persecution due to race, religion etc) and does not require that the state be involved in the persecution. How long does the application process take? The same period of time as an asylum application - from a few weeks to several months. Positive outcomes Humanitarian protection: If an applicant is successful under Article 3, she is likely to be granted humanitarian protection (HP) for a period of five years (if granted after 30 August 2005.) There is no need for a further extension after the five year period expires. At the end of the five year period, the applicant can apply for ILR. Applicants who have Article 3 cases that do not qualify for HP or are successful under Article 8 are highly likely to be granted Discretionary Leave (DL) to Remain in the UK for a period between 1-3 years after which, extensions can be sought. After 6 years of DL, the applicant can apply for ILR. The Home Office will carry out active reviews for both extension and settlement applications. A person granted HP has the right to full welfare benefits, local authority accommodation, education and the right to work. Discretionary Leave to Remain: This is granted either where there will be a breach of human rights other than Article 3 (e.g. Article 8 - the right to family life) or in line with Home Office policy e.g. where a person is also HIV positive or receiving medical treatment. The length of leave will be at the discretion of the Home Office. Usually it is between one and three years. An applicant must have six years continuous Discretionary Leave before an application for ILR can be made. Negative outcome There is a right of appeal. The appellant should lodge her notice of appeal. Within two weeks of lodging the notice, a Case Management Review Hearing will be listed. A full hearing is listed within four weeks of the notice of apeal being lodged. If the appeal is refused, there is a right of appeal to the Asylum and Immigration Tribunal for a review of the immigration judge s decision.

21 European Economic Area cases You may have to deal with women who are spouses of EEA nationals who have come to the UK to work or study. In this section, we set out some of the main points that you will need to bear in mind in relation to EEA nationals and A8 nationals. (An A8 national is someone from Slovenia, Slovakia, Hungary, Lithuania, Latvia, Poland, Czech Republic or Estonia.) However, as this is a specialist area of immigration law, you must obtain legal advice in such cases. If the applicant is also an EEA national, she will be able to stay in the UK independently of her spouse. A non-eea national married to an EEA national does not benefit from the Domestic Rule. However, as a result of a recent European Directive, a non EEA national will not automatically lose her residency rights upon termination of marriage. The Citizens Directive EC 2004/38 came into force on 30 April The Directive and The Social Security (Persons from Abroad) Amendment Regulations 6 include a number of new developments, such as (i) the inclusion of civil partners as family members of EU national; (ii) the introduction of an initial right of residence of three months and; (iii) the introduction of a permanent right of residence after five years residence. Regulation 10 deals with family members who retain the right of residence. It now includes persons who have been divorced or separated where the marriage or civil partnership had lasted three years or more and there is one year s residence in the UK, the parent has custody of a child EU citizen and victims of domestic violence or other particularly difficult circumstances (Reg 10[5]). The key things you need to know is whether she is married to someone with extended rights of residence and whether her separation/divorce is due to domestic violence while the marriage/partnership subsisted. If these conditions are met then she will have a right of residence beyond the initial three months granted to EEA nationals. Whether she is entitled to benefits will depend on whether she has been working and/or whether there is a reciprocal arrangement regarding benefits with her country of nationality. According to official guidance, it is the Department of Work and Pensions view that a lone parent who is economically inactive should be refused benefit as someone who has no prospect of work and is likely to become an unreasonable burden on public funds. 7 However, the European Court of Justice has held that there may be circumstances where the national authorities should provide some support to migrant citizen on the same basis as nationals of the host State when the individual citizen is experiencing a temporary or unexpected difficulty, so long as the migrant does not become an unreasonable burden on public finances. 8 It may therefore be possible to argue that the right to refuse an EEA national (or family members) who are victims of domestic violence, any welfare benefit would be incompatible with Community law. The position on claiming welfare benefits is more complex for A8 nationals as under the 6 See the Immigration (EEA) Regulations 2006 (SI 2006/1003) and The Social Security (Persons from Abroad) Amendment Regulations 2006 (SI 2006/1026). 7 HB/CTB Circular A22/2004 and DMG Vol 2, Chp 7, para See Grzelcsyk v Centre Public d aide sociale d Ottignies- Louvai-La-Neuve Case C-184/99; Baumbast and R v Secretary of State for the Home Department Case C- 413/99; Marie-Natalie D Hoop v Office national de l emploi Case C-224/98) and Trojani v Centre public d aide sociale de Bruxelles Case C-456/02. Immigration Financial support Campaigning Directory Glossary 19

22 Directory Immigration Financial support Campaigning arrangements for the Enlargement of the Union in the Accession Treaty, 9 Member States are allowed to apply their own national laws for a period of five years. Under this legislation an A8 national can only become a qualified person with a right to reside if they are properly registered with an authorised employer. 10 So long as the A8 national is in registered employment they can access in work welfare benefits for themselves and their children, e.g. tax credits, housing benefit and child benefit. However, if the A8 national loses their job (and cannot find registered employment within 30 days) they are no longer a qualified person with a right to reside. Their registration certificate will expire and their entitlement to benefit will end. Glossar y 20 9 Treaty on Accession [2003] O.J.L Reg 5(2) of the Accession Regulations.

23 Flowchart: immigration and asylum applications at a glance Leave to enter or remain in the UK on the basis of: Fiance(e) of British citizen/person permanently settled in the UK Spouse of British citizen/person permanently settled in the UK Unmarried partner (cohabitee relationship) of British citizen/person permanently settled in the UK Other. Eg: student, visitor, work permit holder, asylum seeker (overstayer, illegal) Spouse/partner supports application to remain indefinitely at the end of the 2 year probationary period and marriage/relationship is continuing Successful: Granted Indefinite Leave to Remain (ILR). Marriage to British citizen/person permanently settled in the UK Not successful: Consider appeal/ judicial review. Limited leave to remain in the UK on basis of marriage/relationship - two year probation Successful: Granted Indefinite Leave to Remain (ILR). Marriage/relationship breaks down due to domestic violence. Apply to remain under immigration and domestic violence rules within the two year probation. Not successful: Consider appeal/ judicial review. Marriage/relationship breaks down due to domestic violence after 2 year probation and/or apply to remain in the UK after the 2 year probation ends. Successful: Granted indefinite or limited leave. Overstayer Apply to remain in the UK outside of the immigration rules. Successful: limited leave to remain is granted. Not successful: Consider judicial review. Marriage (with Home Office permission) to British citizen/person permanently settled in the UK Apply to remain in UK on the basis of marriage/relationship Not successful: Consider appeal/ judicial review. Remember: Other relevant applications can also be made at the same time, such as: asylum humanitarian protection, discretionary leave; or for leave to remain outside of the immigration rules. NB: This chart does not cover EEA law in relation to EEA nationals or their dependents subject to domestic violence. Immigration Financial support Campaigning Directory Glossary 21

24 Copy of Immigration Directorate Instructions on domestic violence Glossar y Directory Campaigning Financial support Immigration [This section is copied word for word from the Immigration Directorate s Instructions regarding the Domestic Violence Rule see From Chapter 8 section 4 VICTIMS OF DOMESTIC VIOLENCE 1. INTRODUCTION Paragraph 289A of the Rules sets out the requirements for indefinite leave to remain in the United Kingdom as the victim of domestic violence and should be referred to when making a decision. An applicant who has limited leave to enter or remain in the United Kingdom as the spouse or unmarried partner or registered civil partner of a British citizen or person present and settled in this country and whose marriage or relationship breaks down during the probationary period as a result of domestic violence, may be granted indefinite leave to remain in the United Kingdom, provided that the domestic violence occurred during the probationary period while the relationship was subsisting and the applicant is able to provide satisfactory evidence that domestic violence has taken place. That the relationship was subsisting when domestic violence occurred would normally be evidenced by the fact that the couple were living at the same address when the incident took place. The provision in the Rules is intended to benefit only those who have been subjected to domestic violence during the probationary period and who make their application whilst they still have limited leave to enter or remain in the United Kingdom. The fact that a relationship breaks down due to domestic violence during the very early stages of the probationary period is not to be considered as an adverse factor in reaching a decision. Where an applicant can meet the requirements, the application is to be granted regardless of how much of the probationary period has been completed. The provision does not apply to persons admitted to the United Kingdom as the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain here, or who is a European Economic Area national exercising treaty rights here, as such persons have not been admitted to the United Kingdom for the purpose of settlement. Neither does it apply to fiancé(e) or to those seeking asylum in the UK. 2. DEFINITION OF DOMESTIC VIOLENCE Domestic Violence: Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality. Definition of injury (legal): Any harm done to a person by the acts or ommissions of another Key points The main points on which a caseworker needs to be satisfied in cases of domestic violence are: 22